Mingo County residents alleging they were negligently prescribed pain medication, causing or enabling their addiction, will be able to maintain their lawsuits against pharmacies and doctors that distributed them, West Virginia Supreme Court justices decided.

In a 3-2 decision, written by Chief Justice Margaret Workman, justices decided if a person engaged in criminal activity, a jury will determine the nature, cause and extent that those actions contributed to an alleged injury.

“Without question, our citizenry is best equipped to weigh and speak to our society’s tolerance for the panoply of wrongful conduct presented herein on all sides,” the Wednesday opinion said.

Justices decided that even if a person engages in wrongful conduct, that doesn’t prevent them from recovering from injuries sustained by the illegal activity of another.

“We find untenable the complete vindication of such alleged tortious conduct simply because plaintiff’s conduct may have in some, as-yet-undetermined degree, contributed to his or her injuries. In advocating a wrongful conduct bar, this Court is set with the Hobson’s choice of which conduct we greater prefer to deter ­— the immoral plaintiff or the tortious, perhaps egregiously so, defendant,” the opinion said.

Justices Allen Loughry and Menis Ketchum dissented from the majority saying people shouldn’t be able to profit from their criminal activity through the justice system.

“In a state where drug abuse is so prevalent and where its devastating effects are routinely seen in cases brought before this Court, it is simply unconscionable to me that the majority would permit admitted criminal drug abusers to manipulate our justice system to obtain monetary damages to further fund their abuse and addiction,” Loughry said in his dissent.

In this case, 29 people who were patients of the physicians at the Mountain Medical Center. Most of them sought treatment for injuries sustained in car accidents or where they worked. They alleged they were prescribed controlled substances and became addicted because of criminal abuse of prescriptions.

They filed eight separate lawsuits against a differing variation of pharmacies and doctors, Tug Valley Pharmacy, Strosnider Drug Store, B&K Pharmacies, the Mountain Medical Center and Mountain Medical Center physicians Victorino Teleron, William Ryckman, Katherine Hoover and Diana Shafer.

According to court documents, the FBI raided Mountain Medical Center revealing violations of improperly prescribing controlled substances.

Some of the physicians’ medical licenses were revoked and some pleaded guilty to federal charges. Strosnider and James Wooley were subject to disciplinary or criminal action but B&K and Tug Valley were not.

Court documents said the patients admitted their abuse pre-dated treatment at Mountain Medical Center. They also admitted to criminally obtaining narcotics by doctor shopping. They alleged medical providers acted in concert with the pharmacies and that pharmacies were aware of the “pill mill” activities of the medical providers.

They alleged pharmacies refilled controlled substances too early, refilled for excessive periods of time, and were prescribed controlled substances that enhanced the effects of the drugs.

The circuit judge decided their claims were not barred but certified questions to the state Supreme Court asking if people could maintain a lawsuit, if in order to establish that action, the person has to rely on the illegal act to which a person is a party. Justices decided that answer was yes.

“We find that in cases where a plaintiff has engaged in allegedly immoral or criminal acts, the jury must consider the nature of those actions, the cause of those actions, and the extent to which such acts contributed to their injuries, for purposes of assessment of comparative fault. These are highly factual inquiries, all of which require the jury’s venerable analysis and respected consideration.”

In Loughry’s dissenting opinion, he said the majority “has taken a nonsensical and recreant approach to its consideration.” Loughry said if the facts alleged are true, “there are no even remotely innocent victims here. Rather, there are only individuals who knowingly participated in varying degrees of criminal or grossly reckless activity.”

“In sum, the majority seeks to have West Virginia citizens do its ‘dirty work’ with no regard for the egregious waste of judicial time and resources, loss of earnings occasioned by citizens’ jury duty, etc., that such a case engenders,” Loughry said.

In his dissenting opinion, Ketchum wrote “The majority’s ruling permitting criminal plaintiffs to maintain these civil lawsuits ignores common sense and will encourage other criminals to file similar lawsuits in an attempt to profit from their criminal behavior.

“I strongly disagree with this ruling and believe that this Court should adopt the wrongful conduct rule to prevent criminals from making a mockery of our judicial system by attempting to profit from their criminal activity.”

A day after the decision, the West Virginia Citizens Against Lawsuit Abuse group sent out a news release condemning the decision.

“It’s unfortunate that a majority on the Supreme Court of Appeals decided to enable criminals and their attorneys to profit from illegal behavior,” said Roman Stauffer, executive director of the group. “We agree with Justices Ketchum and Loughry that the court should have adopted the wrongful conduct rule that would prevent these types of abusive lawsuits.”